A selection of weekly articles by top Bahamian commentators.

August 19, 2014

Equal Rights for Bahamian Women—It's Really Not that Hard

by Larry Smith

"Under the present constitution, the way in which Bahamian citizenship is conferred on the spouses and children of Bahamian women is, to say the least, irregular.” — COB lecturer Nicolette Bethel in 2002

Bahamians in and out of parliament seem to be having a hard time decoding the legal terminology that must inevitably guide the process of amending our constitution.

But to get the main point of the amendments, it is not really necessary to delve into the mind-numbing details. The main point is simply that Bahamian women and men should have the same rights under the law.

Not special rights, not different rights, but equal rights. Women should have the same rights as men. Period.

You would think that a nation which spent so much of the 20th century doggedly pursing equality would be united today over equal rights for women to pass on citizenship to their children and spouses. You would think that a constitutional provision to prevent discrimination against more than half the population would be entirely non-controversial.

But you would be wrong.

A recent Facebook comment puts it in a nutshell: "This is seen as a question of giving free citizenship to foreigners in one instance and possibly opening the door to gay marriage in the other. If we are midway through the HOA debate and we already have members on the same side calling each other names, what do you think is going to happen in a free-for-all campaign before the referendum?"

To gain a better understanding of what is happening today we need to go back in time a few decades. To 1951, to be exact, when Mary Ingraham and Mabel Walker led the first petition drive for women's rights in the Bahamas. A few years later, in 1959, Doris Johnson led a successful march on parliament and delivered a fiery speech demanding equal rights. And the right of women to vote was finally conceded in 1961.

But in 1973, the independence constitution enshrined lesser rights for women than men when it came to matters of citizenship. The FNM says it argued strongly against this, but was outvoted by the PLP and the British at the constitutional talks in London.

In 1979, the United Nations General Assembly adopted a treaty that is described as an international bill of rights for women. Under this convention, most countries of the world have agreed to the principle of equality for men and women in their legal systems, and they have also agreed to end any legal discrimination which did exist. Conservative Muslim states are the main holdouts.

The Bahamas ratified this UN convention in 1993, but the discriminatory clauses against women remained in our constitution. So in 2000, then Prime Minister Hubert Ingraham invited opposition leaders Perry Christie and Bernard Nottage to join in a united front to amend our basic law for the first time since independence.

Within a few months, each of the parties had set out the issues they could support, and the government scrapped those for which there was no consensus. Draft proposals were then formulated and provided to the opposition. And in January 2002 the Bills were debated in the House of Assembly.

In addition to the proposal to end discrimination against women, there were proposals to set up an independent electoral boundaries commission, an independent director of public prosecutions, an independent parliamentary commissioner, and a teaching service commission. A fifth proposal sought to raise the retirement age for judges. And a sixth proposal was withdrawn during the House debate.

After the debate, all MPs (except one who was absent) voted in favour of all five of the questions to be put to the people in a referendum that was scheduled for February 27. The vote was to be preceded by a 30-day period of public education, in which all parties were to engage.

But at his first town meeting, PLP leader Perry Christie said he had been mistaken in voting for the proposals in parliament and would vote against them in the referendum. He accused the government of “rushing to fit into an agenda.” Dissident FNM MPs Tennyson Wells, Algernon Allen and Pierre Dupuch also joined in the vigorous ‘no’ campaign.

During the run-up to the referendum, PLP MP Fred Mitchell was one of the leading voices opposing the amendments. He urged Bahamian women to be “very cautious” before voting yes, "lest we be stuck with a badly drafted act that has serious consequences”. A position eerily similar to what FNM leader Dr Hubert Minnis has been saying in the current debate.

Baptist Bishop Samuel Greene, claiming to speak for the Christian Council, accused the government of making "a travesty of democracy" and taking advantage of the Bahamian people with the proposed amendments.

Ingraham responded to all this incredulously: “Perry Christie and I agreed on behalf of our political parties that these are the amendments we were both going to support and he agreed on the list of items. And now he is saying that he was seduced.”

As it happened, well over 60 per cent of the 80-90,000 voters who turned out rejected each of the five amendments, and the PLP went on to win the May 2002 general election by a landslide. Christie declared the referendum vote "a magnificent victory for the people”, and the three FNM dissidents were equally jubilant.

Tribune publisher Eileen Carron, who had strongly supported the proposals, recalled that “almost every day during the referendum exercise we were running down some wild rumour that spread fear, doubt and confusion among voters. In our opinion the historic referendum process was hijacked and the people were duped."

Fast forward to now, when the PLP under the same Perry Christie is proposing essentially the same amendments to achieve the same equality for women that was proposed in the failed 2002 exercise. The vote is currently scheduled for November 6.

There is only one significant difference. The 2002 proposals were produced without the benefit of a constitutional commission, but this time a commission under the leadership of two top lawyers who have also held senior cabinet posts on opposite sides of the aisle - Sean McWeeney and Carl Bethel - has been guiding the process.

Appointed in 2012, the commission engaged in wide public consultation on a range of issues - including gender equality. In their exhaustive 246-page report issued last year, the commissioners offered several pages of well-considered recommendations to improve the constitution, but the government chose to proceed only with the equal rights amendments.

On this, the commissioners urged that "all of the provisions relating to the acquisition of citizenship and transmission to children or spouses be cast in gender-neutral language to provide for the equal attribution of the right of citizenship and to remove any discrimination against women in this, and indeed in every other, regard.”

Over the weekend McWeeney told me that while one or two on the government side might vote against the proposal in parliament, he was optimistic about the outcome. “What is going on now is a normal process of clarifying and fixing imperfections in the drafting. There is good behind-the-scenes bi-partisanship and the numbers are there to get passage. The larger concern relates to public support.”

In the event, only PLP MP Dr Andre Rollins stood in opposition to two of the Bills during Monday’s parliamentary vote.The commission, meanwhile, has revised and simplified the wording of the Bills, and McWeeney expects them to go to the Senate within two weeks, after which there will be "a public relations campaign never seen in this country before”, according to Prime Minister Christie.

FNM Deputy Leader Loretta Butler-Turner was also optimistic: “There are concerns that can be addressed without jeopardizing the outcome,” she told me. "This debate should serve as a mechanism to make adjustments to ensure that all areas of ambiguity are clarified and that the language is clear, simple and concise. The government, opposition, commission and civil society will have to then carry out a national education campaign utilizing all means of communication."

But she added that in her view the government had moved the referendum proposal "to deflect from other things that they wish to hide, and because of this they had totally underestimated the resources that would be required to deal with the doubters, detractors, religious fanatics and misogynists."

Opposition leader Dr Hubert Minnis supported the proposals without reservation when they were tabled in July, but changed his tone during the debate last week. Some say he was pandering to misinformed opinion as part of a pay-back to the PLP for their role in the 2002 referendum disaster. But Minnis told me he was simply seeking to get the questions right so there could be no room for misinterpretation.

The FNM is "totally in favour of equality,” he said.

Finally, much attention has been focused on a few disgruntled PLPs breaking ranks during the debate. If Renward Wells, Greg Moss and Andre Rollins were standing up over an issue like transparency and accountability in government that would be one thing. But to make such a fuss over a confused reading of the equal rights amendments is a huge waste of political capital to my mind.

As PLP lawyer Damien Gomez said in the House last week, "I am troubled that the debate has descended to this level of public hatred. This is not about sexual orientation."

The issues surrounding these proposals have been rehashed numerous times since 2002 and I do not propose to repeat the arguments here. Suffice it to say, as FNM MP Richard Lightbourne did on Monday: “There is a lot of public misinformation, but the amendments to the Bills have helped clear up the contentious issues."]

Comments

And why haven't the amendments to the amendments been made public yet? I myself have several grave concerns. While the bills are generally an improvement of the status quo, the first three maintain current inequalities, add another component of inequality, and have - in a worst case scenario - the potential to increase gender inequality in our constitution.

Bahamians should be cautious when making changes to the constitution:
Ref: - "Proposition 22 was a law enacted by California voters in March 2000 to restrict marriage to opposite-sex couples. In May 2008, it was struck down by the California Supreme Court as contrary to the state constitution." - wiki
The Bahamian electorate should ensure that the Constitution in the future is not deemed to be conflicting with itself by in one hand saying that the legislature should not discriminate by sex (male or female) but include an exception in The Matrimonial Clauses Act stating that in The Bahamas a marriage is a union between a man and a woman. If men and women are equal and interchangeable then the marriage exception is subject to challenge. "Article 26 of the Constitution should be amended to prohibit the making of any law that discriminates against any person either of itself or in its effect on the basis of sex except as stated in the Constitution in reference to marriage."